Nowadays, pretty much anyone can write a blog or a podcast. The internet has truly transformed the way we share, receive, and view information. With that comes a wide range of opinions, many of which are critical.
It can be difficult to tell the difference between legitimate criticism and unjustified attacks on a competitor. That difficulty has created a new phenomenon – the “strategic lawsuit against public participation,” or SLAPP. The concept of a SLAPP is to burden the other party with legal costs until they are forced to give up their criticism.
The 11th Circuit Court of Appeals recently looked at an extremely interesting case related to this phenomenon. Often, the parties responsible for critical blog posts are just journalists or in an unrelated field. This time, however, the issue was that a doctor was criticizing another doctor. Specifically, they were attacking the use of an allegedly poorly tested and ineffective treatment.
That said, there were some very significant differences between the two doctors. The doctor who filed the lawsuit, Dr. Tobinick, had offices in California and Florida, each specializing in using the drug etanercept for a treatment not indicated on the label – treating stroke and Alzheimer’s patients. Furthermore, Dr. Tobinick was certified in internal medicine and dermatology, not the neurological treatment he was providing.
The blogging doctor, Dr. Novella, has produced the “Science-Based Medicine Blog,” or SBM, since 2008. According to the blog website, it focuses on “evaluating medical treatments and products of interest to the public” and regularly examines “dubious medical practice.” Further, Dr. Novella’s medical practice is in Connecticut at Yale New Haven Hospital. As you can see, these doctors do not have much in common.
In his lawsuit, Dr. Tobinick claims that the blog posts critical of his treatment methods are commercial speech. This speech, he claimed, was unfair competition and false advertising. Now, from what I have read, I do not really see what Dr. Tobinick is seeing here. How can a doctor in Florida be competing with one in Connecticut? And false advertising? Advertising for what?
Dr. Tobinick argued that the blog post was “advertising” because the blog had links and ads displayed on it. Dr. Novella makes money from those ads, so according to Dr. Tobinick, the whole blog is an advertisement. Nowadays, most websites have ads on them, even websites for newspapers. But no one claims that everything the New York Times posts on its website is advertising just because there are ads on the webpage.
The Court of Appeals disagreed with Dr. Tobinick. The court saw the blog posts as being published to educate the public, not to try to generate money for Dr. Novella. Even if there was some sort of financial motive for the blog, it still would not be commercial speech for much the same reason as the New York Times.
I guess the main takeaway here is that you should be very careful in your criticism. Freedom of speech is very important, but respect for your business competitors is something that is a big part of friendly society. The people who make a living with their blogs should be allowed to say what they need to say, but businesses are not and should not be allowed to use their websites just to badmouth their competitors.
If you are a business owner and feel like a competitor has attacked you or damaged your business reputation, contact INGRAM LAW LLC at (205) 335-2640.